The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Monday, June 09, 2014

“There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”

Yikes, that's Ian Gershengorn, now deputy Solicitor General, who helped then President Bill Clinton vet then 1st Circuit Judge Breyer. From the WSJ:

“Nothing in Judge Breyer’s opinions suggests that he would be a great Supreme Court justice,” Mr. Gershengorn, then fresh out of Harvard Law School, and another attorney, Tom Perrelli, wrote in a June 1993 memo to White House lawyer Joel Klein. “There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.”
The memo was released Friday in the fifth batch of documents from the Clinton Presidential Library, along with 2,000 pages of material that had been previously withheld for legal reasons that no longer apply.The memo assesses then-Judge Breyer’s opinions in the areas of civil rights, privacy and national security law. It finds it “most remarkable that virtually none” of his rulings turned on substantive issues, instead being decided on administrative or procedural grounds.
“Nonetheless, the dearth of commentary about the substantive issues at stake indicates that Judge Breyer has no real interest in the area of civil rights; it is all but impossible to imagine him being an innovator on the Supreme Court on these issues.,” the memo said.
His decisions are “often reasonable and perhaps legally correct, but there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice,” the memo went on.
“Conservatives will be thrilled if Judge Breyer is appointed,” while “liberals would be very upset at this selection,” the memo concludes
“Everyone has regrets from his 20s,” Mr. Gershengorn said Friday. “Suffice to say, I have the highest respect for Justice Breyer and believe he has proven to be a terrific justice. As Earl Weaver once said, ‘It is what you learn after you know it all that counts.’”
His co-author, Mr. Perrelli, said the 1993 memo shows “why you don’t have second-year associates writing evaluations of potential Supreme Court nominees.” Mr. Perrelli spent three years as associate attorney general in the Obama administration, and now is back in at his old law firm, Jenner & Block.
Justice Breyer couldn’t be reached for comment.
Mr. Perrelli said that in 1993 he was a young lawyer at Jenner, where Mr. Gershengorn worked with him as a summer associate. The two were among a group of private attorneys recruited by the Clinton White House to assess candidates for the high court, he said.
President Clinton passed over Justice Breyer for a 1993 vacancy, instead selecting another federal appeals judge, Ruth Bader Ginsburg, for the slot. The following year, however, Mr. Clinton gave him the nod when another court seat came open.

Unlike Rumpole -- who is usually wrong about most everything -- these two young lawyers were quite perceptive. Justice Breyer's body of Supreme Court opinions fits their predictions very well. He has hardened views about the sentencing guidelines (administrative rules he wrote); often finds a haven in procedure, rather than addressing the merits; he has been horrible in many search and seizure cases, and has shown no compassion in any of his decisions. In short, they were right when they said he is “often reasonable and perhaps legally correct, but there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice.” Could not say it better now, 20+ years later.

Funniest part of all this is the assumption a good "liberal" judge will impose his own judgment, be swayed by emotion, and seek to advance preferred ends rather than applying the law evenly.Agree with 1:35 though--Breyer favors big business and law enforcement way too much. He's probably the chamber of commerce's favorite judge after Alito.

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.